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Hari Charan De Vs. Sherali Talukdar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1932Cal60,136Ind.Cas.475
AppellantHari Charan De
RespondentSherali Talukdar
Cases ReferredKulada Kinkar Roy v. Danesh Mir
Excerpt:
- .....made an order under section 145, criminal p. c, in favour of the first party. he acted upon the police report dated 14th january 1930, which stated that a certain char had formed in the bed of the rajapur river and that this had been cultivated by the first party without objection, but that in june 1929, members of the second party tried to cultivate the char, and that there was a likelihood of a breach of the peace but for police interference. he went on to say that he had formed the opinion that the first party was rightly in possession and thatthe cultivating season is near at hand and there is every chance of a breach of the peace over the possession of the said char land;and he asked that proceedings under section 145, criminal p. c, should be drawn up. that being the position,.....
Judgment:

1. In this case the Magistrate made an order under Section 145, Criminal P. C, in favour of the first party. He acted upon the police report dated 14th January 1930, which stated that a certain char had formed in the bed of the Rajapur river and that this had been cultivated by the first party without objection, but that in June 1929, members of the second party tried to cultivate the char, and that there was a likelihood of a breach of the peace but for police interference. He went on to say that he had formed the opinion that the first party was rightly in possession and that

the cultivating season is near at hand and there is every chance of a breach of the peace over the possession of the said char land;

and he asked that proceedings under Section 145, Criminal P. C, should be drawn up. That being the position, the matter came before the Sessions Judge of Bakarganj and he has made a reference to this Court. In his letter of reference he recommends that the order may be set aside as being bad in law and states that his reason for the recommendation is that the police report to which I have referred discloses that there was a likelihood that a breach of the peace would occur in June 1930, some five months after the date of the report, and that this anticipation was based on the fact that a breach of the peace in June of the previous year had been narrowly averted. The learned Judge does not think that Section 145, Criminal P.C., can have any application to such circumstances and he refers to the ruling in the case of W. Stewart v. Hubert Hughes : AIR1929Cal341 which, in his opinion, exactly covers the present case. A rule also was issued by this Court upon the ground that the police report did not state that there was a dispute likely to cause a breach of the peace and on the ground that the first party did not lay any claim to the western portion of the disputed land, which the Magistrate had declared to be in the possession of the first party, in addition to the other land. The Magistrate in his explanation says that it was clearly stated in the police report that there was an apprehension of a breach of the peace and that the western portion of the land had been included by an oversight, and that it was clear from the petition of the first party that they had surrendered their claim to possession of this western portion. In our opinion the words of Section 145, Criminal P.C., must be given their plain meaning without adding to them any explanatory words. Formerly, in some decisions, words such as, 'imminent' or 'immediate' were added by Judges to the section in an attempt to make the meaning more clear.

2. But in the case of Kulada Kinkar Roy v. Danesh Mir [1906] 33 Cal. 33 it was decided that the introduction of such words into the section, giving it a stronger significance than the words used in the section, was) not justified, and we agree with that opinion. The section requires that there must be a present dispute, and that there must be a likelihood of the breach of the peace. That is to say, there must be a present fear, that it is probable that there will be a breach of the peace owing to the dispute, unless proceedings are taken under the section. Of course that does not mean that orders under this section are to be made when somebody comes and says that he fears that a breach of the peace will occur a considerable time ahead. The procedure under the section is intended to deal with conditions in which the parties responsible for law and order have an existing fear that unless steps are taken under the section, a breach of the peace 1 will occur before they can prevent it. In this ease the words of the police report are that the cultivating season is near at hand and that a breach of the peace is feared. That must mean that in the opinion of the writer of the report a breach of the peace was near at hand. The learned Sessions Judge has interpreted that to mean that the writer of the report only feared that a breach of the peace might occur in June 1930. But the words of the report do not justify any such interpretation. We therefore reject the reference.

Revision No. 1314 of 1930.

3. The order of the Magistrate, so far as it refers to the western portion which has been described by the first party as 'land on the west of the western boundary of plot 2209 produced northwards,' is set aside; otherwise the order stands intact. To this extent the rule is made absolute.


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